Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA237500, Patricia Schnegg, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Eric Lee Wright was convicted of first degree murder with true findings on firearms discharge and criminal street gang allegations. He was sentenced to 50 years to life in prison. He contends: (1) His conviction is not supported by sufficient evidence to satisfy the due process clause of the Fourteenth Amendment of the United States Constitution, as the evidence consisted largely of out-of-court identifications that were not repeated at the trial. (2) Imposition of the firearms enhancement violated the constitutional prohibition against double jeopardy. (3) A condition forbidding use or possession of firearms must be deleted, as he was sentenced to prison and not to probation.
Appellant recognizes that this court must follow decisions of the California Supreme Court that are contrary to his argument on the first two issues. He has raised the issues to preserve them for later review.
We modify the judgment to strike the weapons condition and otherwise affirm.
Appellant filed an in propria persona request that we replace his appointed counsel with different counsel. We denied that request. Appellant has asked us to reconsider. The request for reconsideration is denied.
FACTS
1. Prosecution Evidence
In June 2002, appellant and his friend, Timothy Warrick, were longtime members of the Blood Swans street gang. The evidence established that appellant was the driver and Warrick was the shooter during a gang-related shooting that occurred in an area claimed by a rival gang, the East Coast Crips.
Around 9:30 p.m. on June 12, 2002, Luz G. was inside her car, waiting for a red light to change at an intersection. Various people were outside their homes, celebrating a basketball championship by the Los Angeles Lakers. One of them, 20-year-old Michael Mayberry, walked in front of Luz’s car as he crossed the intersection. His clothes were blue, the color favored by the Crips gang members, but he was not a gang member.
Luz saw a van make a U-turn and then stop. The van’s driver stayed inside it. Two or three Black males got out. They chased Mayberry and shot him. He died from 13 gunshot wounds.
After the shots were fired, the men left in the van. Luz was not injured, but four bullets hit her car. When the police arrived, she told them that the van was a blue, or gray and blue, Chevrolet Astro van. When she was subsequently shown a photo of the red Safari van that appellant owned, she said it resembled the van she saw, but the color was wrong. She picked out a photo of Warrick from a photographic lineup (six-pack), but never identified appellant.
As the investigation progressed, the detectives learned that some of the witnesses were shown photos of the wrong van.
J.R., a 13-year-old girl, observed the incident from a window in her bedroom. She saw a Black male shoot Mayberry multiple times and then get into a van that drove away. She did not see the driver’s face. Afterwards, she told the police the van was reddish or burgundy in color, and a photo of appellant’s red van looked like the van. She picked out a photo of Warrick from a six-pack. She also selected a photo of appellant from a six-pack, stating that his hair looked like the driver’s hair.
Another neighbor, Martha S., was outside when the shooting occurred. Afterwards, when the van passed her, she observed that its driver was a Black male with braided hair. Martha never identified anyone. She thought the van was predominantly blue, with gray or white lines. When a detective showed her a photograph of appellant’s Safari van, she was “70 to 80 percent sure” it was the van she saw.
Several months later, Manuel E., a neighbor, told Marilyn M., Mayberry’s mother, that, although he had not talked with the police, he had been outside and witnessed the shooting. Manuel described the shooting to Marilyn and told her that he got a good look at the driver of the van. He described the driver and said he could identify him if he saw him again. He also could identify the shooter. He did not want to get involved, though. He suggested that if Marilyn obtained from the police the book with photos of the active Swan gang members, he would point out to her the driver and the shooter.
Marilyn called the detectives assigned to the case, Officers Michael Smith and Elizabeth Rico. When the detectives heard what Manuel told Marilyn, they tried to contact Manuel. He did not respond, so they had patrol officers bring him to the police station on September 19, 2002. He repeated to the detectives what he had already told Marilyn. When shown a book of photos of active Swan members, he identified appellant as the driver of the van. He also circled appellant’s picture from a six-pack. During a subsequent interview on October 1, 2002, he picked out Warrick’s picture from a six-pack and said Warrick was the shooter.
At the trial, however, Manuel testified that he only saw Mayberry running, heard shots, and saw Mayberry lying in the street. He did not see and did not recall describing to the police, the shooting, the shooter or the driver. He testified that he told the detectives “lies,” things he himself did not know, that he had heard people saying on “the street.” He said that when he previously looked at appellant’s picture and said he was the driver, he picked out a picture of “anybody,” because he wanted to go home. Similarly, when he selected Warrick’s picture, he made a “random” selection. He denied telling Mayberry’s mother that he “did not want to get involved.” He admitted, however, that he had previously said that he lived in the neighborhood and did not want to answer further questions because he was afraid for his children.
At the time he selected appellant’s picture, Manuel wrote, in the “remarks” section of the witness card, “That’s the guy that I seen drive the van.” (Sic.)
On the date of Manuel’s second interview, his girlfriend, Rebecca F., told the detectives that she also witnessed the shooting. When shown six-packs, she was “70 percent” certain that appellant drove the van and “96 percent” certain that Warrick was the shooter. At the trial, however, Rebecca testified that she did not see either the driver or the shooter. She said she randomly selected photos from the six-packs because she wanted the police to let Manuel come home.
Manuel and Rebecca also testified that the district attorney’s office had threatened to take their children away if they refused to testify.
The prosecution called Timothy Warrick as a witness. Pursuant to a plea agreement, Warrick had previously pled guilty to the manslaughter of Mayberry and arming of a principal, in exchange for 17 years in prison and dismissal of all other charges. The terms of the plea did not require him to testify against appellant. Prior to his plea, he had faced the death penalty for charges that included two murders, one attempted murder, discharge of a firearm from a motor vehicle, personal discharge of a firearm, and prior felony convictions.
Notwithstanding his guilty plea, Warrick testified that he was not present when Mayberry was shot. He also said he did not see appellant at that location and never saw appellant drive a blue van, although he knew that appellant owned a red van. He further testified that, when he was interviewed by the detectives, he said he was not involved in the Mayberry shooting. He denied telling the detectives that he, appellant, and other members of their gang were involved in that shooting, a “Tech 9” weapon was used, and the weapon was taken back to appellant’s house afterwards.
After Warrick testified, the jury heard the details of Warrick’s interview with two detectives, Detectives Smith and Robert Solorza, on October 27, 2002. The first part of the interview occurred at the jail division of Parker Center, where recording equipment was not available. After Warrick admitted his and appellant’s participation in the crime, the detectives drove him to Newton Station, where questioning continued in a room with a hidden microphone. At Newton Station, and thereafter, Warrick repudiated what he had told the detectives in the unrecorded conversation at Parker Center.
Specifically, Detectives Smith and Solorza testified that, during the unrecorded interview at Parker Center, they told Warrick that three witnesses had identified him and they suspected that appellant’s van had been used. Warrick initially denied any knowledge of or involvement in the shooting of Mayberry. Then, Warrick said appellant told him that appellant and three younger members of the gang participated in the crime, and the three younger men left the van to commit the shooting. Later, Warrick said that he himself was inside the van at the time. He did not admit that he himself was a shooter. He said the three younger members were “putting in work,” earning credit with the gang. Appellant was driving a stolen, “blue-gray” van at the time. The gun was a “Tech 9” that was kept at appellant’s home.
During the recorded interview at Newton Station, Warrick denied that he was present when Mayberry was shot, and said he lied when he previously told the detectives that he was present. The detectives told him they wanted the truth. They asked, “What’s changed in the 10 minute car ride?” Warrick said he only told the detectives he was present because they told him he had been identified by eyewitnesses. At one point, he asked why appellant was not “locked up behind bars for an accessory for something that was his van and anything?” (Sic.) The detectives answered that they could not place appellant at the scene, as he had a red van, and “a blue and gray van was used.” Warrick replied, “Because for one – ‘cause two (inaudible) vans. One is ‘Tone’s’ and one’s Eric’s. They’re both the same.”
We recognize that there was some confusion about the vans, partly because appellant did not utilize his own red van during the Mayberry shooting. There was, however, no confusion regarding the fact that multiple witnesses identified appellant and Warrick prior to the trial.
Finally, the police gang expert explained that typical activities of Blood Swans gang members include walk-up shootings and other types of crimes. In the expert’s opinion, from the facts of the crime, the driver of the van and his confederates went into the rival gang’s territory and committed the crime to benefit the Blood Swans.
2. Defense Evidence
A defense gang expert contradicted part of the prosecution gang expert’s testimony regarding the typical behavior of gang members.
An expert on memory and suggestibility described factors that might confuse an eyewitness’s memory and lead to memory errors.
DISCUSSION
1. Due Process and Sufficiency of the Evidence
Appellant contends that his conviction was not supported by sufficient evidence to satisfy the due process requirements of the federal Constitution (U.S. Const., 5th & 14th Amends.), because the evidence consistent largely of prior inconsistent statements.
The prior inconsistent statement exception to the hearsay rule, which is set forth in Evidence Code section 1235, applies “if the statement is inconsistent with [the witness’s] testimony at the hearing,” and the witness has an opportunity to explain or deny the statement. The exception does not violate the confrontation clause because the declarant is available for cross-examination at the trial. (California v. Green (1970) 399 U.S. 149, 164.)
Appellant contends that, even though prior inconsistent statements are admissible, “[a] conviction based almost exclusively on unsworn prior inconsistent statements of witnesses who recant the statements under oath violates due process under the federal [C]onstitution.” The contention lacks merit because under People v. Cuevas (1995) 12 Cal.4th 252, 257, which we must follow (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), a testifying witness’s out-of-court identification can be sufficient in itself to sustain a conviction. Under Cuevas, the sufficiency of an out-of-court identification to support the conviction is determined pursuant to the same substantial evidence test that is used for other forms of evidence. (Cuevas, at p.257.)
Appellant further argues that, “even assuming a prior inconsistent statement is not per se insufficient to support a conviction . . . the evidence in support of his conviction is not sufficiently credible to support the judgment . . . .”
Utilizing the applicable standard of review (People v. Catlin (2001) 26 Cal.4th 81, 139), we find substantial credible evidence to support the conviction.
In their statements prior to the trial, numerous eyewitnesses and one confederate identified appellant as the driver of the blue van that was used during the murder.
Luz, who was in her car at the intersection, saw the shooters come out of a blue or gray and blue Astro van. J.R., who observed the incident from her bedroom window, selected photos of Warrick as the shooter and appellant as the driver. Martha, who was standing outside, testified that a blue van was used and its driver was a Black male with braided hair. Manuel and Rebecca, who also were standing outside, looked at photos and identified appellant as the driver and Warrick as the shooter. Warrick, who had already pleaded guilty to killing Mayberry, told the detectives at Parker Center that appellant was the driver of the “blue-gray van” that was used during the incident.
Taking the evidence as a whole, we find substantial evidence to support appellant’s conviction.
2. Double Jeopardy
Appellant was sentenced to 25 years to life in prison for first degree murder, plus 25 years to life for a firearms discharge enhancement. He contends that imposition of the firearms discharge enhancement violated his federal constitutional protection against double jeopardy (U.S. Const., 5th Amend.), as the same facts were used both for the murder charge and for the enhancement. That contention was rejected in People v. Izaguirre (2007) 42 Cal.4th 126, 133-134, which we must follow. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) We therefore reject appellant’s double jeopardy issue.
3. The Weapons Condition
After sentencing appellant to 50 years to life in prison, and before describing the right to appeal, the trial court stated, “I also want to impose certain other terms and conditions. Obviously, you are not to own, use, possess, or control any weapons, including any firearms, knives, or other concealable weapons.”
The condition regarding weapons is reflected both in the minute order of the sentencing hearing and in the abstract of judgment.
Appellant contends that the weapons condition exceeded the court’s jurisdiction, as he was sentenced to prison rather than granted probation. Respondent counters that there is no need for a modification of the judgment because appellant is not prejudiced by the condition, as he will either be in prison or on parole for the rest of his life, so he will not be allowed to own, use or possess dangerous weapons.
As explained in People v. Lewis (1992) 7 Cal.App.4th 1949, 1954-1955, when a convicted felon appears for sentencing, the trial court must either sentence the defendant or grant probation. If it chooses to grant probation, the terms and conditions of probation are enforced during the term of probation.
In People v. Stone (2004) 123 Cal.App.4th 153, 160, restraining orders that precluded contact with the victims were held to be invalid because, among other reasons, the defendant was sentenced to prison and not probation, so the restraining orders were not a condition of probation. A similar problem occurred here. Because the trial court lacked authority to impose a probation condition at the same time it was sentencing appellant to prison, the weapons condition must be stricken from the judgment.
DISPOSITION
The abstract of judgment shall be modified to strike the condition that reads, “not own, use or possess any dangerous or deadly weapons, including any firearms, knives or other concealable weapons.” In all other respects, the judgment is affirmed.
We concur: COOPER, P. J. RUBIN, J.